ANC & DA battle over an SMS: How legal is it to claim Zuma stole money?

Greg Nicolson

Greg Nicolson

Nicolson left his hometown of Melbourne to move to Johannesburg, beset by fears Australia was going to the dogs. With a camera and a Mac in his bag, he ventures out to cover power and politics, the lives of those included and those excluded. He can be found at the tavern, searching for a good story or drowning a bad one.

Nkandla: Did Zuma steal? That's the question posed in the South Gauteng High Court two weeks after Public Protector Thuli Madonsela released her report on the upgrades to President Jacob Zuma's private Nkandla home. The ANC says the DA violated the Electoral Act by sending an SMS to 1.6 million people saying “Zuma stole your money”. The DA says it's echoing what everyone really thinks. By GREG NICOLSON.

“The Nkandla report shows how Zuma stole your money to build his R246m home. Vote DA on 7 May to beat corruption. Together for change.” That's the SMS the DA sent to 1,593,683 people in Gauteng. The ANC, which has had issues with the DA's mass campaigning methods before, took the party to court on Wednesday, putting the Nkandla issue in front of a judge for the first time. Madonsela's report found wide-ranging unlawful conduct, maladministration, and wasteful expenditure regarding the security upgrades while also finding that the Zuma family benefited from non-security related developments, which she suggested the president pay back a reasonable portion.

But did he “steal”?

In front of acting Judge Mike Hellens, who went to pains to establish whether the issue was being heard by the Electoral Court, the High Court, or both, the ANC said the matter was clear. Section 89 of the Electoral Act prohibits distributing false information aimed at influencing the outcome of an election. Advocate Gcina Malindi for the ANC said the Act clearly prohibits the DA's false claims. At no point in her report did Madonsela say Zuma stole money from the state. The word “stole” is never used. The DA has agreed not to send more of the text messages, which Malindi said is an admission by the party that it was wrong. “The assertion that he stole is clearly false. The DA could never have believed that [the report] came to that conclusion.”

During election times, the ANC's counsel argued, the Electoral Act limits free speech. “If this is allowed to persist, we all know what it will lead to,” Malindi argued, claiming other parties will start making false allegations, which could incite violence like it was seen before the 1994 elections. By claiming Zuma stole R246 million the DA is misleading voters, Malindi continued, because the DA itself has estimated he only benefited to the tune of R52.8 million – a calculation on the cost of non-security upgrades. The ANC wants a follow-up SMS to be sent out with an apology or the DA to pay a R200,000 fine.

While the ANC's case appears simple – during electioneering the DA suggests the Public Protector found Zuma stole from the state but she never comes to that conclusion – Judge Hellens criticised the ANC counsel for failing to explain what Madonsela did say. The ANC did not submit the Nkandla report to the court nor did it counter the claims of “stealing” with factual evidence of what Madonsela actually found.

Counsel for the DA argued two points: the ANC's interpretation of the law is too strict and it ignores “fair comment” precedences. Representing the DA, Advocate Ismail Jamie said the case was about the balance between the DA's right to free speech versus the court's imperative to ensure an orderly election. The ANC's interpretation of the Electoral Act is unconstitutional, he argued. Jamie said the SMS didn’t actually claim Zuma stole R246 million or suggest it appeared in the report.

Interestingly, Jamie referred to a defamation judgment relating to Robert McBride. Years ago the now-head of the Independent Police Investigative Directorate took The Citizen newspaper to court for branding him a murderer. The case went to the Constitutional Court which upheld the newspaper's argument that although McBride was given amnesty the criticism was protected, even if extreme, unjust, unbalanced, or exaggerated, as long as the opinion was honestly held on a matter of public interest with true facts. Someone need not be convicted of murder for people to call him a murderer, the DA argued. Someone need not be found guilty of stealing to say he stole.

Jamie argued that the common, reasonable man on the street believes Zuma stole state money, making the DA's claims a fair comment. “If you read the Nkandla report you may reasonably conclude the president appropriated funds for his own benefit, knowingly,” said Jamie. He cited some of Madonsela's key findings. On multiple occasions Zuma was clearly involved in the upgrades, he must have known about the exorbitant costs but did nothing, his family benefited from the fiasco, and Madonsela found unlawful and improper conduct and maladministration, said the advocate. The fact that the Public Protector found a “licence to loot” situation was created displays the level of theft, he added. “You don't have to wait for a person to be convicted to call them a thief,” said Jamie.

Speaking outside the court, DA spokesperson and candidate for Gauteng premier, Mmusi Maimane, said the party had a valid case and Zuma must be held accountable. “The argument is quite clear. The report shows that public money was being wasted and we'd put the argument to say that a reasonable South African, somebody who if I presented you with the following facts: money was stolen... there was maladministration, there was looting, that the president tacitly agreed and in fact he failed to stop the project and ask why the costs were going up, I think a reasonable person could draw the conclusion money was stolen. How we SMS, that is a separate issue.”

Claims the SMS could incite violence are “nonsense” said Maimane. “I think the statement to say money was wasted in Nkandla is not inciting. In fact, more than anything, as we argued in court today, I don't know why [there's] this sudden obsession with protecting President Zuma as if no one can say anything against him. The reality is he's the first citizen of our country. If he doesn't like the heat then he must get out of the office.”

ANC spokesperson Jackson Mthembu said the DA contravened the Electoral Act. “Don't use falsehoods. Don't peddle lies to get a few votes in these elections because our laws say you cannot do so during election time. When outside of election time, do so; of course there are other laws people can use, but during an election time we have used the Electoral Act as a basis because we also believe that all of us during election time must be responsible. The DA's SMS was not responsible and in fact it was terrible. It has poisoned the electoral environment and we believe anybody who poisons the electoral environment must be stopped.”

Asked whether South Africans might think Zuma stole, Mthembu responded, “I'm an ordinary South African. I know what that report says.” With DA supporters singing in the background, he said other officials have been blamed for Nkandla but not Zuma. “Zuma was not in the management of this project therefore by any account you can't then say all these wrong things – all of us agree these things were wrong – you can't then say this amounts to Zuma stealing public money. For you as an ordinary South African to reach that conclusion I'm not sure that it will be fair to Zuma.”

He continued: “Once you say that you know you are peddling lies, once you say that you know you are peddling falsehoods, once you say so you know that you are accusing Zuma falsely, once you do so you also know you are in contravention of the Act that guides elections in this country.” He said the Special Investigating Unit (SIU) was investigating the issue. However, it's looking into private companies and government officials, not Zuma.

Main photo: DA supporters outside the court avoid the rain by sitting in a taxi with their placards. 02 April 2014 (Greg Nicolson/Daily Maverick)

Greg Nicolson

Greg Nicolson

Nicolson left his hometown of Melbourne to move to Johannesburg, beset by fears Australia was going to the dogs. With a camera and a Mac in his bag, he ventures out to cover power and politics, the lives of those included and those excluded. He can be found at the tavern, searching for a good story or drowning a bad one.

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